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By special request from an adjuster who had a claim where “the claimant has come back positive for every drug under the sun”, here is a Tip on the Intoxication defense. (I’m not going to touch on the issues with Marijuana, see below for my last Tip on that, as it is still developing. ) If anyone wants more info for their team, we have a whole CEU on this topic we can set up for you.
Under FL statute 440.09(7), if a claimant tests positive for a drug or had blood alcohol above the legal limit, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.
- So, first make sure there was a valid drug test done that followed the rules in FL Administrative Code 59-A. This requires a formal collection and testing process, and then a review by a Medical Review Officer (MRO) who confirms the testing was done properly, chain of custody was followed and speaking to the claimant to see if there are any prescriptions involved. If you get a formal drug test result signed off by the MRO, you are (likely) good.
How soon does the test have to be completed after the accident? Well I wish there was a concrete answer, but it is not addressed in statute or caselaw. Generally, we say 24 hours or less.
- If the injured worker refuses to submit to a drug test, it shall be presumed in the absence of clear and convincing evidence to the contrary that the injury was occasioned primarily by the influence of drugs. 440.09(7)(c).
- Statutory Drug Free Work-Place versus Non-Drug Free. Many employers list that are a Drug-Free Workplace per statute, but when push comes to shove, if they miss even one little requirement, they do not get that standard. Most employers will fall under the Non-Drug Free standard. The difference comes down to how hard it is for the claimant to overcome the presumption. Presumption comes from the phrase in the statute- presumed that the injury was occasioned primarily by the intoxication….
In a Drug-Free Workplace this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury. That’s a pretty high standard for the claimant to prove the claim is compensable. It’s that the accident would have definitely happened whether they were intoxicated or not basically.
In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury. This is a little easier for the claimant to prove their case. It is the accident pretty sure would have happened whether they were intoxicated or not. Passenger in a car, the entire scaffolding collapses and several are hurt, etc…
- Claimants often say they got high with their supervisor, but that requires proof. Also it requires more than the claimant and/or colleagues saying they were not intoxicated. They are presumed intoxicated, and they would have to show the accident would have happened regardless.
- Once you get through the analysis above, you can deny the entire claim if it holds up.
Feel free to reach out, every case is fact specific!
Sincerely,
Morgan Indek | Managing Partner